Seize the day: Property forfeitures on rise

Thanks to new provincial rules that significantly speed up and simplify the process, the number of civil forfeitures and the cash they net have skyrocketed in the last couple of years. Where once there were 30 or 35 forfeitures a year, ones a judge had to approve, now there are roughly 200.

In that past decade, Brandon police forces have seized nearly $100,000 in property — including cash and a truck — that was eventually turned over to provincial coffers.

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Thanks to new provincial rules that significantly speed up and simplify the process, the number of civil forfeitures and the cash they net have skyrocketed in the last couple of years. Where once there were 30 or 35 forfeitures a year, ones a judge had to approve, now there are roughly 200.

Forfeiture laws are still very new. They are relatively untested by top courts and could signal a significant shift in the way provinces fight crime, moving key elements into civil court rather than criminal.

University of Manitoba law Prof. Michelle Gallant has studied forfeiture laws across Canada and around the world and says they come with significant risks to due process.

Winnipeg defence lawyer Karl Gowenlock agrees, saying the laws are too broad and too vague and are being used against their original purpose. They also shift the burden of proof from the state to the citizen, who must prove the government claiming their possessions is not in the interests of justice.

"They (the laws) were passed in the name of fighting organized crime and taking away the ill-gotten gains of gangsters," said Gowenlock. "But in practice, these laws are just as easily used against small-time growers or innocent landlords. And we have very few decisions telling us what is and is not clearly in the interests of justice."

Forcing property owners to prove they should be able to keep what the government wants to seize pits them against a civil justice system that’s complex and expensive to navigate, Gowenlock said. Many simply give up the fight because it costs too much to go on.

"This creates two main risks," said Gowenlock. "Innocent people end up forfeiting their property when they have done nothing wrong, and ... guilty people end up receiving punishments hugely disproportionate to their offence."

In the four years since Manitoba’s law kicked in, the province has seized more than $7 million in goods and cash. The proceeds are placed in a fund for crime victims and for grants to police departments. Those grants have bought everything from automated licence-plate readers to better vans for police canine units.

The seized goods include mostly cash from drug deals or drug houses — sometimes a few hundred dollars, sometimes hundreds of thousands. The biggest cash seizure so far is $435,695.

The province has also seized farmland where marijuana was cultivated and roughly 40 other properties, usually houses and cottages used as grow-ops. A cabin in Lac Du Bonnet is about to go up for sale after the province snagged it after a grow-op bust.

Through the new fast-track administrative process, the province has taken more than 30 vehicles, including a new Ford F650 truck and a Caterpillar forklift.

British Columbia has used its forfeiture laws the most aggressively, gleaning $41 million in assets so far. But that province is now facing criticism the law’s reach is too wide and the process has become a cash cow. B.C.’s ombudsman as well as the B.C. Civil Liberties Association have raised concerns.

Gallant says the civil forfeiture process can undermine the traditional notion of due process that prevails in criminal court. In civil court, a citizen might not have the right to a state-appointed lawyer, might not be immune to double jeopardy and isn’t innocent until proven guilty. And the burden of proof is much lower.

In a criminal matter, the prosecution must prove its case beyond a reasonable doubt. In civil court, the test involves a balance of probabilities. That’s why, in the vast majority of civil forfeiture cases, people are rarely convicted of a related crime before the government steps in and takes their stuff.

Two years ago, Manitoba tweaked its rules, allowing it to bypass a courtroom and speedily seize assets tainted by crime as long as the asset is worth less than $75,000. That process is called administrative forfeiture, and it has raised some eyebrows.

The process allows the province to avoid making a time-consuming and costly application in civil court. Instead, if the province has a wad of cash or a vehicle seized by police, it mails a letter to the original owner and posts a forfeiture notice online. If the owner doesn’t object before the deadline, the forfeit is complete.

Gowenlock says bystanders often get ensnared in the law.

Gord Schumacher, the director of Manitoba’s criminal forfeiture division, says the province combs databases and court records for all known addresses and does its best to find the owners of cash and property before the forfeiture. The dispute process is fairly simple and, even after the deadline, owners can seek redress if they feel property has been seized unfairly.

On the civil side, where forfeiture cases worth more than $75,000 must go through the courts, Schumacher said it’s a point of pride none has gone to trial. That means they are settled in the preliminary discovery phase. In most cases, the original owners see the evidence is not in their favour and abandon their challenge, but the province has also occasionally realized the forfeiture was made in error and stepped back.

Manitoba’s law has an extra element not common in forfeiture legislation elsewhere in the western world.

Here, the government is allowed to seize property that has been used to engage in unlawful activity or that caused or was likely to cause serious bodily harm. The bodily-harm element offers the province much broader powers to seize property beyond drug dealing or gang activity.

For example, if a homeowner gets into a fight in his house, the province could conceivably seize it since it was the scene of the assault.

But how do we know forfeiture laws work?

"At the very least, it’s better to have that dirty money under the control of the state rather than in the hands of obvious drug dealers," said Gallant. But she said it’s hard to know whether, in the long run, forfeiture laws actually do what they intended — shrink organized crime.

However, Schumacher said street intelligence and feedback from police suggest the forfeiture law is having an impact.

"The purpose of organized crime is to make money, so taking money away, that hurts," he said. "It disrupts how they do business. It takes away the life blood."

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